Throughout this document Westcott Sand and Aggregate Ltd will be known as the “Supplier”, other person(s) company will be known as the “Client”.
THIS AGREEMENT (“Agreement”) is made and entered into by and between the “Client” and Westcott Sand & Aggregates Ltd as the “Supplier”. The “Goods” shall mean the goods or where the context permits the services to be supplied by the Supplier. “The Conditions” shall mean the terms set out in this document and any special terms agreed in writing between the supplier and the client. “The Contract” means the contract for the supply of Goods incorporating these Conditions. “A Consumer” means a consumer as defined by the Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1994. THESE TERMS DO NOT APPLY IF YOU ARE A CONSUMER. For this purpose, a consumer means any natural person acting for purposes outside its trade business or profession.

 

1. GENERAL
• 1.1 All orders accepted are subject to these conditions. In event of inconsistency between these conditions and the customer’s condition of purchase or supply, these conditions shall prevail.
1.1.1 The contract is not assignable.
1.1.2 The headings of these Conditions are for convenience only and shall have no effect on interpretation.
• 1.2 All of the Supplier’s standard printed information in advertising or describing its product in technical terms is for general guidance only.
• 1.3 We will not tolerate verbal or physical abuse towards staff, assets, or premises.
1.3.1 any person giving verbal threats towards our staff or making threats towards our assets or premises will be asked to leave the premises immediately and permanently.
1.3.2 we reserve the right to refuse service under clause 1.3 and 1.3.1 and not limited to clause 1.3 and 1.3.1.
• 1.4 The purchaser is deemed to be fully conversant with the nature and performance of the goods, including any harmful or hazardous effects.
• 1.5 The construction validity and performance of these Conditions and this Contract shall be governed by English Law.
1.5.1 If any Clause or sub-Clause of these Conditions is held by any court or other competent authority to be void or unenforceable the validity of the other Clauses or sub-Clauses of these Conditions shall not be affected, and they shall remain in full force and effect.
• 1.6 The waiver by the Supplier of any breach or default of these Conditions shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.
• 1.7 Nothing in these Conditions or this Contract is intended to or will create any benefit for or right to enforce any of these Conditions on a third party.
• 1.8 Termination of this Contract shall not affect the rights and obligations whatsoever accrued at the time of termination.
• 1.9 Without prejudice to any other right that it may have against the Client, the Supplier shall have a general lien over any property of the Client that is in the Supplier’s possession, in respect of all unpaid debts to it from the Client.

 

2. BASIS OF SALE
• 2.1 The Goods are sold by the Supplier only under these Conditions, which may not be altered without the written agreement of a Company Director. Any contrary or additional terms unless so agreed are excluded.
• 2.3 Any agreed specialist conditions, the client’s order and the supplier’s confirmation of the order constitute the entire agreement between the supplier and the client and may only be varied in writing signed by one of the company’s directors or under the authority of the Director.

• 2.4 Any order that is not completed within the agreed contracted period will automatically be invoiced on the 1st working day following the end of the agreed contracted period.
• 2.5 These terms shall begin from the enquiry date and terms of notice shall apply from the date of the order of the Goods.
• 2.6 Cancellation of special made orders cannot be accepted after purchase has been made by the Supplier. Any deviation from this is subject to the Supplier’s discretion.

 

3. REPRESENTATIONS
• 3.1 The Supplier shall not be held liable in respect of any misrepresentation made by the Supplier, its servants, or agents to the Client as to the condition of the Goods their fitness for any purpose or as to quantity of measurements unless the representation is:
3.1.1 made or confirmed in writing by a Company Director; and/or
3.1.2 fraudulent.
• 3.2 Without prejudice to Clause 3.1 of these Conditions while the Supplier takes every precaution in the preparation of its catalogues’ technical circulars price lists and other literature these documents are for the Client’s general guidance only and statements made therein (in the absence of fraud on the part of the Supplier) shall not constitute representations by the Supplier and the Supplier shall not be bound by them. If the customer requires advice in relation to the Goods a specific request for advice should be made and any advice made of confirmed in writing in response to such a request shall amount to a representation and the Client shall be liable accordingly.
• 3.3 For the avoidance of doubt except where the Goods are supplied to a Client dealing as a Consumer the Supplier’s liability for damages for misrepresentation (other than fraudulent) is excluded or limited by Clause 13 of these Conditions. The statutory rights of a Consumer are not affected by these Conditions.
• 3.4 The Supplier reserves the right to sub-contract any order part thereof.
• 3.5 The Supplier shall not be held liable in respect of:
3.5.1 Loss, damage or any consequential or indirect loss sustained by customers or their servants or agents or third parties.
3.5.2 Loss of or damage to the Client’s property or property for which the Supplier is responsible or any consequential or any indirect loss attributed to any acts of customers, servants, personnel, representatives or third parties.
3.5.3 The Supplier shall not be responsible for the negligence of the Client’s agents, representatives, servants, or workmen. Furthermore, the Supplier shall not be held responsible for any loss arising out of inaccurate instructions or information being supplied.

 

4. PRICE
• 4.1 Quoted prices are based on costs prevailing at the time when they are given or agreed and are exclusive of VAT. The Supplier reserves the right to adjust the price of the Goods as at the time of delivery of the Goods or each instalment of Goods as the case may be:
• 4.1.1 if there is any change in the specifications for the Goods requested by the Client or any delay caused by any instructions of the Client or failure of the Client to give the Supplier adequate information or instructions and/or;
• 4.1.2 to take account of any direct or indirect price increases sustained by the Supplier.
• 4.2 Prices are subject to the adherence of indicated quantities upon volume quotation. Deviation may result in the Supplier being entitled to any direct or indirect price increase sustained by the Supplier as a result of these quantity deviations.

 

5. DELIVERY
• 5.1 The goods shall be delivered to the location specified in the customer’s order.
• 5.2 Unless specifically agreed in writing, any date for delivery specified by the company are given in good faith and are estimates only
• 5.2.1 Times given for deliveries shall not be the essence of the Contract.
• 5.2.2 Failure to deliver goods by the date estimated shall not constitute a breach of contract or negligence, nor shall be deemed to be subject of a separate enforceable contract.
• 5.3 If a Client fails to take a delivery, the Client will be liable for wasted and/ or additional transport costs incurred by the Supplier.
• 5.4 All deliveries must be received and signed for by a person aged 18 or over. If no one is available to take the delivery, we’ll call you to arrange a suitable date and time for redelivery, which may result in an additional handling and/or delivery charge an any waiting time charges incurred. If no one is available to receive the redelivery, we may cancel your order and refund your payment, minus any delivery, handling and waiting time charges.

 

6. ACCOUNTS
• 6.1 Credit Accounts are due for settlements 30 days after the invoice date. We reserve the right to refuse dispatch of new orders if credit accounts are overdue.
• 6.2 Cash accounts and cash sales are due for settlements the working day prior to the delivery date. We reserve the right to refuse dispatch until full payment has been received and cleared, delayed payments may result in delays in the initially agreed delivery date.
• 6.3 Credit Accounts are provided and managed by a third party, Mitsubishi HC Capital UK PLC (registered in England under number 1630491) at 5 Hollinswood Court, Stafford Park 1, Telford, Shropshire TF3 3DE, who trade as Novuna Business Cash Flow (‘Novuna’).
6.3.1 Payments must be made in full to Novuna. Payment to Westcott Sand And Aggregates Ltd or any party other than Novuna will not constitute a valid discharge of the debt.
• 6.4 Any invoice outstanding beyond these detailed points may be referred to our debt recovery agents the fees for this will be subject to a surcharge of 15% plus VAT to cover the collection costs incurred. This surcharge together with all other charges and fees incurred, will be the responsibility of the customer and will legally enforceable.
• 6.5 Invoices are due on the due date stated on the invoice given or as per our payment terms with you. The full balance of the invoice must be paid in full. Any late payments will be subject to charges of £40 (For up to £999.99) or £70 (For £1000-£9999) As well as incurring a weekly 8% Interest Fee.

 

7. RISK
• 7.1 Risk shall pass onto the client following delivery and the client is responsible for all loss, damage or deterioration of the goods.
• 7.2 Goods sold are naturally occurring non-renewable minerals extracted from the Earth’s crust. These materials have been subjected to geological forces resulting in visual changes in the mineral.
7.2.1 these visual changes include but are not limited to: changes in shade, changes in colour, changes in shape, changes in size, changes in sizing ratio, changes in colour mix ratio.
7.2.2 there is no guarantee or warranty on colour, size or shape. This includes and is not limited to; purchasing across batches, purchasing across an extended period of time. Stockpiles offered by our servants, employees or agents are at the Supplier’s discretion and must be confirmed in writing by the Company Director. The Supplier bears no liability for Goods ordered across batches or an extended period of time which then have visual differences.
• 7.3 Electronic media presented online is for guidance only, the Supplier shall not accept liability for any variance which may occur from settings on individual devices, monitors or screens.

 

8. RETENTION OF TITLE
• 8.1 Title to Goods sold does not pass from the Supplier to the Client until the invoice price and any other money which is due and payable by the Client to the Supplier at the date of this contract has been paid in full and, until such time the goods are in possession of the Client as bailee in a fiduciary capacity for the Supplier.
• 8.2 The Client shall permit the employees or agents of the Supplier to enter the Supplier’s premises to repossess goods subject to this retention of title.

 

9. CLAIMS AND RETURNS
• 9.1 The Client shall have no claim for shortage or defect unless the Client inspects the goods and supplies a written complaint specifying the shortage or defect and is made to the Supplier within 14 days of delivery of the goods.
• 9.2 The Supplier shall not be liable for any claim for loss or damage in finished work involving the Supplier’s products due to fair wear and tear, misuse or failure to comply with the Supplier’s product literature.
• 9.3 The Supplier will not accept returned goods if the goods supplied are specifically for your order. If the goods are accepted as a return the Supplier will only do this on the basis that, the goods are in resaleable order, are unused and uncontaminated. The cost of returning the goods shall be the responsibility of the Client unless the goods are damaged or faulty.

 

10. CANCELLATIONS
• 10.1 All cancellations are subject to a 5% cancellation charge. Deviations of this are at the Supplier’s discretion.
• 10.2 You have the statutory right to cancel your order at any time from the moment you place your order and up to the evening before your delivery/collection slot (excluding orders for bespoke, special-made or made-to-measure products) and receive a full refund, including standard delivery charges, excluding the cancellation charge detailed in 10.1. Notification that you wish to cancel your order must be made within this time-period and must be made in writing with reference to your order number.
• 10.3 To exercise your Consumer Cancellation Right, you must contact us at any time before the goods are dispatched (excluding orders for bespoke, special-made or made-to-measure products) or within 14 days of delivery, starting on the day after your delivery is made. If we receive your cancellation notice outside of these timeframes, your Consumer Cancellation Right will not apply. Please also note that if you exercise your Consumer Cancellation Right after the goods have been delivered, you’ll be responsible for returning the goods to us at your own cost and within 14 days of cancelling your order.
• 10.4 Consumer Cancellation Right to a Refund – We’ll refund your returned goods as soon as possible and no later than 14 days after receiving them back. The refund will be made to the bank details provided on return of your returned goods. Please note that we have the right to reduce the amount of your refund to reflect any decrease in the goods’ value that has resulted from the manner in which you’ve handled them and minus any delivery charges from the applicable order.
• 10.5 Unless you have a Consumer Cancellation Right or have received faulty/defective goods, any cancellations/returns and refunds are at the Supplier’s discretion.

 

11. DIVISIBILITY CLAUSE
• 11.1 This contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.

 

12. GOVERNING LAW AND JURISDICTION
• 12.1 These Terms & Conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales and the English and Welsh courts shall have exclusive jurisdiction to resolve disputes arising out of or in connection with these Terms & Conditions and any contract made subject to them.

 

13. LIABILITIES
• 13.1 In these Conditions “Defect” shall mean the condition and/or any attribute of the Goods and/or any other circumstances which but for the effect of these Conditions would have entitled the Client to damages.
• 13.2 Nothing in these Conditions shall exclude or restrict the Supplier’s liability for death or personal injury resulting from its negligence or the Supplier’s liability for fraudulent misrepresentation.
• 13.3 If the Client deals as a Consumer any provision of these Conditions which is of no effect shall not apply. The statutory rights of a Client dealing as a Consumer are not affected by these terms.
• 13.4 Subject to Clauses 13.2 and 13.3 of these Conditions the Supplier shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability in damages the Supplier undertakes liability under Clause 13.5 below.
• 13.5 Where but for the effect of Clause 13.4 of these Conditions a Client would have been entitled to damages against the Supplier the Supplier shall not be liable to pay damages but subject to the conditions set out in Clause 13.6 below shall in its sole discretion repair the Goods at its own expense or supply replacement Goods free of charge or refund all (or where appropriate part) of the price for the relevant Goods.
• 13.6 The Supplier will not be liable under Clause 13.5:- 13.6.1 if the Defect arises from fair wear and tear; and/or 13.6.2 if the Defect arises from wilful damage negligence abnormal working conditions mis-use alteration or repair of the Goods failure to follow British Standard or industry instructions relevant to the Goods or storage of the Goods in unsuitable conditions (but this sub-Clause shall not apply to any act or omission of the Supplier); and/or 13.6.3 unless after discovery of the Defect the Supplier is given a reasonable opportunity to inspect the Goods before they are used or in any way interfered with. For the avoidance of doubt the Supplier acknowledges that the costs of suspending works are relevant to the determination of what is a reasonable opportunity and this sub-Clause shall not apply to any works affecting the Goods which it may be reasonably necessary to carry out in the interests of safety and/or as emergency measures.
• 13.7 Subject to Clauses 13.2 and 13.3 of these Conditions the Supplier shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages howsoever arising (if notwithstanding Clause 13.4 of these Conditions the Client is entitled to recover any) nor shall the Supplier be liable under Clause 13.5 of these Conditions unless:- 13.7.1 if the Defect would have been apparent on a reasonable inspection under Clause 13.1 of these Conditions at the time of unloading written notice of any claim is given to the Supplier within two working days of the time of unloading; or in any other case 13.7.2 the Defect is discovered within 2 months from the date of delivery and the Supplier is given written notice of the Defect within 7 working days of it being discovered.
• 13.8 If the Goods are not manufactured by the Supplier or have been processed by a third party whether or not at the request of the Supplier or the Client, the Supplier’s liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer or the third party as the Supplier may have in respect of those Goods. The Supplier will on written request provide details of its rights against the manufacturer or third party and any other terms and conditions imposed by the manufacturer or the third party and so far as possible will on request assign to the Client any such rights.
• 13.9 Except where the Client deals as a Consumer the Client will unconditionally fully and effectively indemnify the Supplier against all loss damages costs on an indemnity basis and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any claim by any third party arising from the supply or use of the Goods including loss arising from the Supplier’s negligence.
• 13.10 Subject to Clauses 13.2 and 13.3 of these Conditions the Supplier shall not be liable for misrepresentation (unless fraudulent) or in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever arising and whatever the cause for: (a) any financial loss or any liability the Client may have to a third party or any loss of profit, business, contracts, revenues or anticipated savings; and/or (b) any special indirect or consequential damage of any nature whatsoever.
• 13.11 Without prejudice to any other provisions in these Conditions in any event the Supplier’s total liability for any one claim or for the total of all claims arising from any one act of default of the Supplier (whether arising from the Supplier’s negligence or otherwise) shall not exceed the purchase price of the Goods the subject matter of any claim.
• 13.12 Subject to the unfair contracts act 1977, all implied terms and conditions and warranties are excluded and the company’s liability in relation to any claim shall not, in any circumstances, exceed the price of goods, nor shall the company be liable for consequential or direct loss or damage.
• 13.14 Where a valid claim arises in respect of any defect in the quantity or condition of the goods or failure to meet specification and is notified to the company it shall be entitled to replace the goods free of charge or, at our sole discretion, refund to the purchaser the price of the goods.

 

14. DEFAULT
• 14.1 “insolvent” shall mean the Client becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; the levying or the threat of execution or distress on any property of the Client; the appointment of a receiver or administrative receiver over all or any part of the Client’s property; a proposal for a voluntary arrangement or com-promise between the Client and its creditors whether pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution for voluntary winding up or summoning a meeting to pass such a resolution otherwise than for the purposes of a bona fide amalgamation or reconstruction; the presentation of a petition for winding up of a Customer or for an administration order in relation to the Client; the Client ceasing or threatening to cease to carry on its business.
• 14.2 If the Client fails to pay the Supplier for any Goods on the due date or the Client becomes Insolvent or if the Client is in breach of any Condition of this Contract and fails to remedy such breach after being so requested to do the full balance outstanding on any account between the Client and the Client shall become immediately payable and the Client shall be entitled to do one or more of the following (without prejudice to any other rights or remedy it may have):
10.2.1 require payment in cash or cleared funds in advance of delivery of undelivered Goods;
10.2.2 cancel or suspend any further delivery to the Client under any contract;
10.2.3 sell or otherwise dispose of any Goods which are the subject of any contract with the Client;
10.2.4 charge the Client interest on the balance of monies overdue, such interest to accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998;
10.2.5 without prejudice to the generality of Clause 7 of these Conditions exercise the powers there set out.
10.3 The Client shall reimburse the Supplier’s costs including legal costs on an indemnity basis which the Supplier incurs in enforcing its rights under this Contract including but not limited to recovery of any sums due. Such sums shall be paid in addition to the statutory compensation payable by the Client under the Late Payment of Commercial Debts Regulations 2002.
• 14.3 Without prejudice to any other rights which it may have against the customer, the company may rescind the contract, in whole or in part, if any sum is due from the customer to the company under the contract but is unpaid. If the customer becomes bankrupt or insolvent.

 

15. FORCE MAJEURE
• 15.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation.
15.1.1 acts of God, flood, drought, earthquake or other natural disaster;
15.1.2 epidemic or pandemic.
15.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations.
15.1.4 nuclear, chemical or biological contamination or sonic boom.
15.1.5 any law, order, direction or action taken by a local or national government, regulatory body, or agency, including without limitation imposing an export or import restriction, quota or prohibition, failing to grant a necessary licence or consent, or restricting or disconnecting access to utility services such as electricity, water and gas.
15.1.6 collapse of buildings, fire, explosion or accident.
15.1.7 non-performance by suppliers or subcontractors; and
15.1.8 restriction, disconnection, shortage, or reduction in the supply of power and/or any utility services.
• 15.2 If the Supplier is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event, the Supplier shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations.
• 15.3 The Supplier shall be under no liability if it is prevented from, or delayed in, carrying out the whole part of the contract for any cause beyond its control.

 

16. DISCLAIMER
• 16.1 This information and all further technical advice is based on our present knowledge and experience. We reserve the right to make any changes according to technological progress or further developments. The Client is not released from the obligation to conduct careful inspection of testing of incoming goods. Reference to trade names used by other companies is neither a recommendation, nor does it imply that a similar product could not be used.
• 16.2 We as the company reserve the right to change payment terms at any time.